PART 20. TEXAS WORKFORCE COMMISSION
CHAPTER 809. CHILD CARE SERVICES
SUBCHAPTER C. ELIGIBILITY FOR CHILD CARE SERVICES
The Texas Workforce Commission (Commission) adopts amendments to the following section of Chapter 809, relating to Child Care Services, without changes, as published in the December 12, 2008, issue of the Texas Register (33 TexReg 10146):
Subchapter C. Eligibility for Child Care Services, §809.41
PART I. PURPOSE, BACKGROUND, AND AUTHORITY
PART II. EXPLANATION OF INDIVIDUAL PROVISIONS WITH COMMENTS AND RESPONSES
PART I. PURPOSE, BACKGROUND, AND AUTHORITY
Title IV of the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of 1996, as amended, requires that providers of federal public benefits verify the citizenship or immigration status of all beneficiaries of public assistance. The Child Care and Development Fund (CCDF) is among the U.S. Health and Human Services programs that are subject to the verification provisions of PRWORA. On November 25, 1998, the Administration for Children and Families (ACF) issued Program Instruction ACYF-PI-CC-98-08 to clarify that the child is the primary beneficiary of the CCDF program and as such only the child's citizenship or immigration status is subject to verification.
PRWORA §432(d), as amended, exempts nonprofit charitable organizations that provide federal, state, or local public benefits from determining, verifying, or otherwise requiring proof of citizenship or immigration status from any applicant for such benefits. In Program Instruction ACYF-PI-CC-98-08, ACF affirmed that this exemption is applicable when nonprofit charitable organizations determine eligibility for CCDF, but not applicable when governmental entities or nonprofits that are not charitable organizations determine eligibility. Additionally, the CCDF Lead Agency cannot require nonprofit charitable organizations determining eligibility for the CCDF program to verify citizenship and immigration status.
Texas Labor Code §302.023 requires that the administration of workforce development programs be delegated to the Local Workforce Development Boards (Boards) and Texas Government Code §2308.264(a) prohibits Boards from directly determining eligibility for services. As a result, child care eligibility is determined by entities that contract with Boards--a majority of which are nonprofit charitable organizations. ACF guidance in ACYF-PI-CC-98-08 did not specify whether the CCDF Lead Agency contracting with nonprofit charitable organizations--which are exempt from verifying a child's citizenship or immigration status--retains the responsibility for ensuring that such verification is conducted.
On May 2, 2008, ACF issued Program Instruction CCDF-ACF-PI-2008-01 to clarify its previous guidance and respond to inquiries from a number of states regarding verification of citizenship or immigration status of CCDF applicants. The Program Instruction states that while nonprofit charitable organizations are exempt from the verification requirements mandated by Title IV of PRWORA, the CCDF Lead Agency is not exempt from its responsibility to ensure that only eligible individuals receive services. Therefore, when contracting directly or indirectly with a nonprofit charitable organization that elects not to verify the citizenship or immigration status of applicants for CCDF services, the Texas Workforce Commission, as the CCDF Lead Agency, remains responsible for ensuring that a child's citizenship and immigration status is verified.
As a result of this clarification, the Commission adopts amendments to Chapter 809, Child Care Services rules, to ensure that a child's citizenship or legal immigrant status is verified as part of the basic eligibility determination for CCDF services.
PART II. EXPLANATION OF INDIVIDUAL PROVISIONS WITH COMMENTS AND RESPONSES
SUBCHAPTER C. ELIGIBILITY FOR CHILD CARE SERVICES
The Commission adopts the following amendment:
§809.41. A Child's General Eligibility for Child Care Services
New §809.41(a)(2) is added to require that Boards must ensure that a child's citizenship or legal status is verified as a component of eligibility for child care services.
This change reflects guidance from ACF that a child's citizenship or immigration status must be verified to comply with PRWORA requirements.
Pursuant to §809.42(a), prior to authorizing child care a Board must ensure that its child care contractor verifies eligibility for child care services, which includes a child's citizenship or immigration status. Program Instruction CCDF-ACF-PI-2008-01 states that Lead Agencies have flexibility to establish procedures for verifying an applicant's citizenship or immigration status. However, the procedures must be in accordance with U.S. Department of Justice (DOJ) requirements for verifying eligibility for "Federal public benefit" programs found in the November 17, 1997, DOJ "Interim Guidance on Verification of Citizenship, Qualified Alien Status and Eligibility Under Title IV of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996." (62 FR 61344).
To comply with the federal directive in Program Instruction CCDF-ACF-PI-2008-01 in a timely manner, on December 8, 2008, the Commission issued Workforce Development (WD) Letter 44-08, entitled "Child Care Services: Documentation of a Child's Age, Citizenship, or Immigration Status" to provide Boards with guidance on methods for verifying a child's citizenship or immigration status that comply with DOJ guidance.
Also, because some child care contractors are nonprofit charitable organizations and exempt from verifying citizenship or immigration status under PRWORA §432(d), the Commission will also issue guidance to Boards that maintains this exemption but ensures that the verifications are performed.
Certain paragraphs in §809.41 have been renumbered to accommodate additions or deletions.
Comment: Four commenters believed that the ACF program instruction of 2008, on which the Commission based the proposed rule, is inconsistent with the DOJ interim guidance provided in 1997, which states that nonprofit charitable organizations cannot be required to verify citizenship.
Response: The Commission takes no position regarding the contention that there may be an inconsistency between the 1997 DOJ interim guidance and the ACF guidance issued in May 2008. As the Lead Agency responsible for administering the CCDF program and funds, the Commission must comply with all directives issued by ACF regarding CCDF program and funds. In particular, the Commission must ensure that CCDF funds are spent in the manner determined by ACF and applicable federal laws. ACF affirmed in CCDF-ACF-PI-2008-01 that nonprofit charitable organizations are exempt from citizenship verification requirements. However, Lead Agencies are not exempt and must ensure that the verifications are performed. The Commission affirmed this exemption in §809.41(a)(2) and in WD Letter 44-08 to ensure that Boards and their child care contractors comply with the nonprofit charitable organization exemption.
Comment: Two commenters suggested that the Commission withdraw the proposed rule. One commenter suggested that the Commission wait until the new White House administration issues further guidance.
Response: As Lead Agency responsible for administering the CCDF program, the Commission must comply with all ACF directives regarding CCDF. The Commission does not have the authority to choose which federal guidance to implement and which federal guidance to leave pending in anticipation of possible changes from a new administration.
Comment: One commenter questioned why the rule was being changed as ACF had not threatened Lead Agencies with loss of funding. As such, there is no rush to act. The commenter believed that before ACF could threaten an agency with "pulling funds," there must be a determination of improper payments.
Response: The Commission disagrees with the assumption that it should wait to be threatened with loss of funding before acting. The Commission will always respond to directives and guidance from federal agencies and address any issue to ensure that federal funds are spent properly. This includes complying with the ACF guidance on verifying a child's citizenship and immigration status.
Comment: One commenter believed that Texas influenced ACF to issue guidance on citizenship. The commenter pointed out that ACF did not issue the guidance in 2008 until after requested to do so by the Agency.
Response: The Commission disagrees with the comment. ACF specifically notes in its guidance that the purpose is to "clarify(y) previous policy guidance and respond to inquiries received from a number of States regarding verification of the citizenship and immigration status of CCDF applicants." Moreover, the action corresponds with ACF's efforts to reduce improper payments in subsidized child care and other federally funded programs. ACF's requirements for implementing the "Improper Authorizations for Payment Report" specified that the citizenship or immigration status of the child must be contained in the case file or the case file would be considered as missing a required data element for determining eligibility; and, thus, would constitute an error and possible improper payment. The Agency, along with other states, requested clarification from ACF to ensure compliance with the data requirement of the "Improper Authorizations for Payment Report."
Comment: One commenter stated that the Commission rules would have the effect of prohibiting a charitable nonprofit from receiving a contract with the Board to determine child care eligibility.
Response: The Commission disagrees with the comment. Charitable nonprofits are not exempt from the majority of the eligibility requirements, and have raised no concerns about ability or willingness to perform those functions. The child care eligibility determination process consists of verifying: 1) the parent's eligibility requirements including verifying the family income and the parent work status or participation in education or job training activities; and 2) the child's eligibility requirements such as the child's age and U.S. citizenship or legal immigration status. As the ACF guidance clarified, charitable nonprofits are not required to verify citizenship or immigration status of the child, a subset of the entire eligibility verification process. However, as the CCDF Lead Agency, the Commission has the responsibility to see that this determination is still performed if a charitable nonprofit is unwilling to do so, and pass this requirement on to the Boards.
Accordingly, when Boards undertake a competitive procurement process for child care eligibility determinations, they must procure for all elements of eligibility verification. When selecting the entity or entities, the Board takes into consideration contractor qualifications, service offerings, as well as the total overall cost to the Board of conducting both parts of the eligibility process (parent eligibility and child eligibility). If a charitable nonprofit organization declines to verify citizenship or immigration status directly, but offers to subcontract that service to another entity as part of its procurement bid, then the Board will take that into consideration in evaluating the bid, just as if a single entity provided both portions of eligibility determination. However, if a charitable nonprofit organization declines to include that service in its bid, that bid would be considered nonresponsive to the Board's request, consistent with procurement guidelines. Unless a Board separately procures each element of eligibility verification, allowing the Board to contract with separate entities to ensure the full verification is conducted, the bid of a charitable nonprofit choosing not to perform all elements requested would not be considered responsive. In either case, the Board will attempt to contract out the eligibility process to provide the lowest cost to the Board and ultimately to the state.
Selecting a single contractor or a combination of contractors to perform all of the eligibility services listed in a request for proposal over a contractor that can perform only some of the services does not constitute a penalty.
Comment: One commenter stated that allowing a Board to take into consideration in awarding a child care contract an entity's willingness or ability to document citizenship or immigration status has the practical result of penalizing a charitable nonprofit. The commenter stated that this is in conflict with the DOJ interim guidance, which states that a charitable nonprofit choosing not to document citizenship should not be penalized for providing public benefits to an individual who is not a U.S. citizen or legal immigrant except when it does so in violation of independent program verification requirements or in the face of a verification determination made by a nonexempt entity.
Response: The Commission disagrees that the Agency's rules implementing ACF directives in any way penalize charitable nonprofit entities. The comment correctly cites the DOJ interim guidance statement that a charitable nonprofit that does not document citizenship should not be penalized for providing public benefits to an individual who is not a U.S. citizen or legal immigrant. The comment also correctly states that the charitable nonprofit may be penalized if it provides public benefits to an individual who is not a U.S. citizen or legal immigrant when it does so in violation of "independent program verification requirements." As the Lead Agency, the Agency must ensure that charitable nonprofit entities are afforded the ACF exemption, while at the same time, ensure that public benefits are not provided to an ineligible individual. It is important to note that, in Texas, determining child care eligibility is an independent process, separate and distinct from providing subsidized child care services. Boards contract with entities, some of which may be charitable nonprofits, to determine eligibility. Once eligibility is determined by the entity, the parent chooses a child care provider. The entity determining eligibility follows the Agency's and the Board's "independent program verification requirements" and makes referrals to child care providers based on the parent choice of provider. Accordingly, the risk of providing public benefits to ineligible individuals must be addressed at the eligibility determination stage.
Comment: One commenter noted that a Board wrote a letter to the Agency during rule development stating that the rule would place additional costs on the Boards at a time when the Boards are trying to decrease administrative and operational expenditures. The commenter expressed concerns that this rule would add stress to an already stretched and stressed system.
Response: The Commission disagrees that the rule would place stress on the child care system. As mentioned in the impact statements of the proposed rules (as published in the December 12, 2008, issue of the Texas Register (33 TexReg 10146)), any costs associated with implementing the rules are not likely to be significant, particularly when such verification can occur using the same documentation currently used to verify the child's age. Additionally, citizenship and immigration status verification for child care is a one-time procedure per child compared to parental working status and income level, which may be verified as many as four times per year. Finally, the verification also may be satisfied through the required verification process associated with other federal assistance programs, such as qualification for Temporary Assistance for Needy Families or Supplemental Nutrition Assistance Program benefits, prior to qualification for subsidized child care.
Comment: One commenter stated that the explanations for implementing §809.41(a)(2) in WD Letter 44-08 include elements that are inconsistent with the federal law and DOJ guidance. Specifically, the letter did not include in the list of acceptable verification documents the ability of the parent to provide a written declaration under penalty of perjury from one or more third parties or the applicant's written declaration under penalty of perjury as allowed under DOJ's Interim Guidance on Verification of Citizenship, Qualified Alien Status and Eligibility under Title IV of PRWORA.
Response: The Commission notes that the documentation requirements provided in WD Letter 44-08 were taken directly from the DOJ guidance. Program Instruction CCDF-ACF-PI-2008-01 gives Lead Agencies flexibility to establish procedures for verifying an applicant's citizenship or immigration as long as they comply with the DOJ interim guidance. The Commission points out that the written declaration referenced in DOJ's guidance is accompanied by an additional requirement that the citizenship and immigration status be verified.
The DOJ interim guidance allows the option for the required verification to be a document verifying citizenship or a written declaration. The DOJ guidance also states that the written declaration presents "a greater potential for undetected false claims of being a United States citizen or non-citizen national, and therefore should be used with caution in appropriate circumstances." Additionally, although the DOJ guidance allows a written declaration from a qualified alien, the DOJ interim guidance also states that the individual should be asked to provide documentation to verify the legal immigration status. Therefore, the Commission contends that the process set out in Agency rules for determining U.S. citizenship or legal immigrant status conforms with DOJ interim guidance.
Comment: One commenter stated that "public safety is enhanced when public needs are effectively met." The commenter asked that the focus be on "productivity, efficiency, economy, and making sure that needs are met with the limited funds that we have." The commenter noted that its organization sometimes finds "lots of overlap, fragmentation, and duplication" in nonprofit agencies. The commenter suggested that no action be taken.
Response: The Commission agrees that productivity, efficiency, and economy are important factors. One reason Boards have the flexibility to take into consideration an entity's willingness or ability to provide full verification, including documenting a child's citizenship or immigration status, is to prevent the type of concerns mentioned in the comment such as overlap, fragmentation, and duplication. These problems could occur if a Board is forced to split the eligibility determination between two contractors. However, the Commission disagrees that the best course is to take no action. The DOJ guidance long ago established that nonprofits do not have to verify citizenship or immigration status. The ACF guidance simply clarified that while that is true, citizenship must still be verified by someone in order for a child to be entitled to receive subsidized child care, and the Lead Agencies are responsible for ensuring that this is done.
Comment: Two commenters expressed concern for immigrants who have experienced dire circumstances to get into the United States and those who have had to overcome the language and cultural barriers to get assistance. One commenter mentioned that many have fled severe abuse and are able to stay because they are asylees, refugees, or victims under the Violence Against Women Act. The commenter explained that the immigrants would once again suffer great hardship because of resulting delays if they were to have their identification lost or stolen and were unable to prove their immigration status to receive child care. The commenter added that the process would be cumbersome for a child care-providing organization to understand the complexity of the documents to accept.
Response: The Commission recognizes dedication of advocates who assist immigrants. The Commission's intent is to ensure that federal and state funds are expended on those eligible to receive subsidized care. It is important to remember that it is only the child's citizenship or immigration status--not the parent's--that must be verified. This guidance has been provided to the Boards in WD Letter 44-08, which includes a list of acceptable documents, taken from DOJ guidance, to verify a child's citizenship or immigration status and age.
The Commission notes that the eligibility verification process applies to all families and is conducted regardless of immigrant status. All individuals in need of child care services share common traits and the need for immediate services is one of them. The Texas workforce system strives to provide service as promptly as possible, as long as the eligibility determination is completed in compliance with federal and state regulations. The Commission does not believe that it would be any more complex to ask for verification of the child's citizenship or immigration status than it would be to ascertain the family's income eligibility or the child's age.
Finally, the Commission understands the concern that child care providers may have difficulty understanding the complexity of the acceptable documents for verifying citizenship. However, the Commission again points out that the actual providers of child care are not responsible for verifying citizenship and immigration status. As mentioned previously, in Texas, determining eligibility for subsidized child care is an independent process that is separate from providing child care services. Once eligibility is determined by the Board's child care contractor, the parent chooses a child care provider. The child care provider is not responsible for determining eligibility and will not be required to understand the documents necessary for verifying the child's citizenship or immigration status. The task of verifying the correct documents is left to the child care contractor and not the child care provider.
Comment: One commenter stated that there is a discriminatory impact and violation of Texas Government Code §2105.004, which states that "(a)n agency or provider may not use block grant funds in a manner that discriminates on the basis of race, color, national origin, sex, or religion." The commenter stated that "no children at all should be kept from receiving child care from a nonprofit charitable organization for lack of verification."
Response: The Commission appreciates the desire for all children to receive care irrespective of their status. The Commission disagrees that the proposed rule violates the cited statute. The proposed rule has neither a discriminatory intent nor effect. Federal regulation as clarified through ACF guidance requires Lead Agencies to verify a child's age and citizenship or immigration status before the child can receive subsidized child care. This is part of the eligibility process and is applied uniformly to all children. As long as the child's age and status are verified and the family's income level falls within the Board-established limits, then a child is eligible for care. It does not matter where the child was born.
Comment: One commenter asked why both the ACF guidance and the proposed rule do not mention the statement found in DOJ guidance at 62 C.F.R. §61349 that an applicant cannot be conclusively denied benefits without first verifying the applicant's status with the U.S. Citizenship and Immigration Services' guidelines. The commenter then noted that the DOJ guidance followed that statement with a series of complex steps for verifying citizenship and immigration status. The commenter stated that these steps were also not mentioned in the Commission rules.
Response: The Commission notes that the DOJ statement referenced in the comment, when taken in context of the DOJ guidance, applies to cases in which the document presented does not on its face reasonably appear to be genuine or to relate to the person presenting it. The Commission also points out that the comment failed to include the related statement in the DOJ guidance that the entity determining eligibility:
"should refer to the legal requirements of your program and to any applicable guidance provided by the federal agency or department overseeing your program, if any, to determine whether you would grant or withhold benefits during the period of time in which you are verifying the applicant's immigration status."
ACF, the federal agency overseeing subsidized child care, has issued guidance that if an audit review determines an ineligible recipient received CCDF assistance, such funds would be considered misspent and subject to disallowance. The Commission concludes that this guidance implies that federal child care benefits cannot be extended to individuals until the recipient has been determined to be eligible, including verifying citizenship and immigration status.
Comment: One commenter stated that there may be several situations in which the child may not have any of the documents listed in WD Letter 44-08, but may be a citizen or legal immigrant. These situations include children for whom an adult relative has temporary custody of a child in an abusive parental relationship; children in domestic violence situations; and children whose documents have been made unavailable due to fire or natural disaster.
Response: The Commission appreciates the comment and points out that authorizing child care for children in protective services is under the authority of Texas Department of Family and Protective Services' (DFPS) Child Protective Services (CPS) division. DFPS has confirmed that the citizenship or immigration status of children receiving protective services child care funded by CCDF is verified by CPS prior to authorizing child care services.
Regarding instances in which the child's documents may have been destroyed by fire or natural disaster, the Commission notes that the documents listed in WD Letter 44-08 are typically public records for which the parent can and should request replacements. The Commission does not anticipate that the request for the public document, particularly a birth certificate, would significantly delay the eligibility documentation process.
COMMENTS WERE RECEIVED FROM:
The Honorable Representative Eddie Rodriguez, State Representative, District 51
Andrew Rivas, Executive Director, Texas Catholic Conference
Blake Stanford, Texas Child and Adult Care Food Program Sponsors Association
Bruce Bower, Individual, and on behalf of Pax Christi Austin
Kate Lincoln-Goldfinch, American Gateways
Clint Smith, Gray Panthers of Texas
The rules are adopted under Texas Labor Code §301.0015 and §302.002(d), which provide the Commission with the authority to adopt, amend, or repeal such rules as it deems necessary for the effective administration of Agency services and activities, and the Texas Human Resources Code §44.002, regarding Administrative Rules.
The adopted rules will affect Texas Labor Code, Title 4, particularly Chapters 301 and 302, as well as Texas Government Code, Chapter 2308.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on June 2, 2009.
TRD-200902188
Reagan Miller
Deputy Division Director, Workforce Policy and Service Delivery Branch
Texas Workforce Commission
Effective date: June 22, 2009
Proposal publication date: December 12, 2008
For further information, please call: (512) 475-0829
The Texas Workforce Commission (Commission) adopts the following new section, without changes, to Chapter 809, relating to Child Care Services, as published in the March 13, 2009, issue of the Texas Register (34 TexReg 1791):
Subchapter E. Requirements to Provide Child Care, §809.94
PART I. PURPOSE, BACKGROUND, AND AUTHORITY
PART II. EXPLANATION OF INDIVIDUAL PROVISIONS WITH COMMENTS AND RESPONSES
PART I. PURPOSE, BACKGROUND, AND AUTHORITY
The intent of the adopted changes to the Chapter 809 Child Care Services rules is to provide a mechanism by which the Commission and Local Workforce Development Boards (Boards) can ensure that child care providers receiving Commission child care funds are:
--meeting minimum health and safety standards as determined by the Texas Department of Family and Protective Services (DFPS); and
--providing the basic quality of care for children receiving Commission-funded child care.
The Commission rule changes are designed to balance two fundamental principles of the Child Care and Development Fund (CCDF):
--providing for the health and safety of children receiving subsidized child care; and
--ensuring that parents can choose from the full range of child care options to best suit their family needs.
Additionally, the Commission rules work in concert with the DFPS process for placing child care providers on corrective or adverse action. The Commission rules are based on DFPS regulatory remedies for child care providers that are found to be in noncompliance with health and safety standards and are designed to provide appropriate actions for Boards and parents, given the level of risk to children as determined by DFPS. The rules also balance parental choice and the health and safety of children with child care providers' due process for remedying regulatory deficiencies determined by DFPS.
Levels of Corrective and Adverse Action by DFPS
The Commission rules are predicated on the following three levels of actions that DFPS can take when a child care provider is found to be in noncompliance with state regulatory standards:
1. Evaluation Corrective Action
2. Probation Corrective Action
3. Adverse Action
According to the DFPS licensing rules at 40 TAC Chapter 745, DFPS may impose an evaluation corrective action (evaluation status) when a provider's deficiencies present a lower risk to children and, as long as the conditions imposed by the evaluation are followed, the provider does not need to cease operating to make the corrections. Evaluation status:
--involves a period of heightened monitoring;
--is imposed only after a plan for compliance has been developed and when a specific incident or pattern of deficiencies is not serious enough to require probation; and
--cannot be imposed for less than 30 days or for more than six months.
For providers placed on evaluation status, the Commission rules require Boards to ensure that parents with children enrolled, or parents wishing to enroll children, in Commission-funded child care with the provider are notified in writing of the provider's evaluation status with DFPS. A parent can choose to continue the enrollment with the provider if the parent signs an acknowledgment affirming that he or she has been notified of the provider's evaluation status and has chosen to continue the enrollment.
According to Chapter 745 of the DFPS rules, DFPS may impose a probation corrective action (probationary status) when a specific incident or a pattern of deficiencies can lead to adverse action. Probationary status:
--is appropriate where a risk to children may exist but when further action, such as closing the provider, is not necessary as long as the deficiencies are addressed through the corrective action plan; and
--cannot be imposed for less than 30 days or for more than one year.
Additionally, Chapter 745 of the DFPS rules requires providers placed on evaluation or probationary status to post the corrective action notice in a prominent place near each public entrance.
For providers placed on probationary status, the Commission rules require Boards to ensure that parents with children enrolled in Commission-funded child care with the provider are notified in writing of the provider's probationary status. A parent can choose to continue the enrollment with the provider if the parent signs an acknowledgment affirming that he or she has been notified of the provider's probationary status and has chosen to continue the enrollment. However, the Board must ensure that no new enrollments of children receiving Commission-funded child care are accepted with a provider in probationary status.
According to Chapter 745 of the DFPS rules, an adverse action is applied when DFPS attempts to close a provider. Adverse action is taken when DFPS determines that the provider has deficiencies that endanger the health and safety of children. DFPS adverse actions include notifying the provider of DFPS' intent to deny, revoke, or suspend the provider's permit. If an adverse action is taken, the provider has a right to request an administrative review and a hearing. If the adverse action is upheld, the provider must close. Chapter 745 of the DFPS rules also requires that when a provider receives notice from DFPS that it intends to take adverse action against the provider, the provider must post the notice of the adverse action in a prominent place near each public entrance. The provider must also notify each parent, guardian, or managing conservator of the children enrolled within five days of receiving the notice from DFPS.
The Commission rules do not allow reimbursements for Commission-funded child care to any provider against which DFPS is taking adverse action. Therefore, Boards must ensure that:
--no new referrals are made to the providers; and
--children currently enrolled in Commission-funded child care with such providers are transferred to another eligible provider.
Chapter 745 of the DFPS rules provides that if, during an inspection, DFPS licensing staff discovers conditions that pose a threat of immediate danger to the children, DFPS licensing staff can take immediate actions to remove the children and initiate an emergency suspension and closure order. When this happens, DFPS policies require the provider to notify parents to pick up their children within four hours or by the end of the day, whichever is longer. The operation is then closed for no more than 10 days. Further, DFPS must initiate an adverse action in the form of an intent to revoke no later than five days from the date of the emergency closure. Although the provider may request an administrative review of the emergency closure and adverse action, the provider cannot operate or care for children during the administrative review.
Because the emergency suspension and closure order requires all children at the facility to be removed from care, the Commission believes it is not necessary to address provider eligibility for reimbursement in Commission rules as the provider is not entitled to any reimbursement while children are not allowed in care. Furthermore, the emergency nature of the closure, the short time frame for parental notification, and the requirement for immediate removal of children make additional parental notification an unnecessary burden upon the Board.
However, issuance of an emergency suspension and closure order may not mean that a provider has ceased operating. Under Chapter 745 of DFPS rules, a provider may seek a court injunction to stop the emergency suspension and closure if the provider disagrees with the DFPS determination that the provider poses an immediate threat to children. The court may decide to uphold the decision to close the operation. On the other hand, the court may enjoin closure and allow the provider to continue operating pending the outcome of the administrative review of the adverse action.
Under DFPS rules, emergency closure actions are treated as adverse actions. Consistent with this approach, the Commission rules require Boards to treat a provider that, by a court order, is continuing operations pending the outcome of the administrative review, in accordance with the procedures for adverse actions.
Parent Choice
CCDF regulations at 45 C.F.R. §98.30 require states to allow parents to choose from a variety of child care categories including care in child care centers, group homes, and family homes, and care in the child's home. States cannot promulgate rules that significantly restrict parental choice in categories of care or that have the effect of excluding categories of care. Although the rules may affect a parent's choice of a particular individual provider under certain circumstances (specifically, providers placed on probationary status or adverse action), the rules neither restrict parents' choice of a particular provider category nor have the effect of excluding a substantial number of providers in any category.
According to DFPS data, the number of licensed and registered child care providers in State Fiscal Year 2008 (SFY'08) (September 1, 2007, through August 31, 2008) totaled 19,995. Also during SYF'08, 320 child care providers were placed on corrective or adverse action. Of those, 211 were placed on corrective action (113 on evaluation status and 98 on probationary status), and 109 were placed on adverse action. Therefore, the providers affected by these rules represent approximately 1.6 percent of all providers. DFPS data also shows that approximately 2.3 percent of licensed child care centers, 1.3 percent of licensed homes, and 0.8 percent of registered homes were placed on some type of corrective or adverse action.
The rules do not limit parent choice of the full range of provider categories in any specific local workforce development area (workforce area). Harris County had 86 providers on corrective or adverse action, followed by Bexar County with 22 providers. Only 5 other counties in Texas had more than 10 providers on corrective or adverse action. These providers represent less than 1 percent of the providers in a particular workforce area. Finally, of the 320 providers on corrective or adverse action during SFY'08, only 184 served children receiving Commission-funded child care. During that same period, 9,023 regulated providers cared for children receiving Commission-funded child care. Therefore, only 2 percent of regulated providers serving children in Commission-funded child care were placed on any type of corrective or adverse action.
Based on this data, the Commission concludes that these rules will not significantly limit parent choice of any provider category. Additionally, the rules allow a parent to enroll a child with a provider that is on evaluation status and allow a parent with a child currently enrolled with a provider on evaluation status to continue enrollment (provided the parent signs a statement acknowledging that the parent is aware of the provider's status with DFPS).
However, providers against whom DFPS is taking adverse action have been found by DFPS to have deficiencies that pose a risk to children. The Commission believes it is necessary to ensure the health and safety of children receiving publically subsidized child care, therefore the rules do not allow parents of children enrolled in Commission-funded child care the choice of a provider on adverse action.
Administrative Review Process through DFPS
The Commission emphasizes that Boards must allow a provider on corrective or adverse action to pursue DFPS' administrative review prior to the Board taking action to notify the parents, close enrollment, or transfer children. DFPS rules, Chapter 745, give providers 15 days from the initial notification of corrective or adverse action to request an administrative review. However, providers may request a waiver of an administrative review within that 15-day period. DFPS provides official notice to the provider following the administrative review or after receiving the request from the provider to waive the administrative review.
To assist in the implementation of these rules, DFPS has agreed to provide the Agency with an official notification when providers are placed on corrective or adverse action. Upon receiving notification from DFPS, the Agency will notify the affected Board. The Commission will provide further guidance and procedures to Boards through the issuance of a Workforce Development (WD) Letter. The rule language specifies that Board actions are taken only after receiving notification from the Agency of the provider's official status with DFPS.
The Commission also emphasizes the importance of allowing the DFPS administrative review to be completed prior to notifying the parents, closing enrollment, or transferring children to another provider. This allows providers to address any due process issues through DFPS. The administrative review is conducted under DFPS standard rules and procedures as set out in Chapter 745. The decision to place the provider on corrective or adverse action rests solely with DFPS and includes the DFPS' administrative review process. Therefore, the provider cannot appeal this decision to the Board. Further, the provider has no appeal rights to the Agency under Chapter 823, the Commission's Integrated Complaints, Hearings, and Appeals rules.
PART II. EXPLANATION OF INDIVIDUAL PROVISIONS WITH COMMENTS AND RESPONSES
SUBCHAPTER E. REQUIREMENTS TO PROVIDE CHILD CARE
The Commission adopts the following new section to Subchapter E:
§809.94. Providers Placed on Corrective or Adverse Action by the Texas Department of Family and Protective Services.
New §809.94 sets forth actions Boards must take when a provider is placed on corrective or adverse action by DFPS.
Section 809.94(a) describes Board requirements regarding providers placed on evaluation corrective action (evaluation status).
Section 809.94(a)(1) requires Boards to ensure that parents with children currently enrolled in Commission-funded child care with the provider are notified in writing of the provider's evaluation status. The Board must ensure that parents are notified no later than five business days from receipt of the Agency's notification of the DFPS decision to place the provider on evaluation status.
Section 809.94(a)(2) requires Boards to ensure that parents choosing to enroll a child in Commission-funded child care with a provider on evaluation status are notified of the provider's status with DFPS prior to enrolling the child.
Section 809.94(b) describes Board requirements regarding providers placed on probation corrective action (probationary status).
Section 809.94(b)(1) requires Boards to ensure that parents with children currently enrolled in Commission-funded child care with the provider are notified in writing of the provider's probationary status. These requirements mirror those in §800.94(a)(1) for children enrolled with a provider on evaluation status. The Board must ensure that parents are notified no later than five business days from receipt of the Agency's notification of DFPS' decision to place the provider on probationary status. If a parent decides to continue enrollment with a provider on corrective action (i.e., evaluation or probationary status), the parent must sign a written acknowledgment that he or she has been notified of the provider's status.
The Commission allows parents with children currently enrolled in Commission-funded child care with a provider on evaluation or probationary status to continue this enrollment in order to preserve parent choice and avoid any disruption of child care. The Commission recognizes that the current placement may best meet the needs of the working parent--requiring parents to transfer to another provider may place an undue burden on the parents and jeopardize their work arrangements.
Section 809.94(b)(2) requires that Boards must ensure that no new referrals are made to providers on probationary status. DFPS' decision to place a provider on probationary status involves findings that present a higher risk to children, thus it is essential that no new enrollments of children receiving Commission-funded child care occur until the provider corrects the deficiencies and is removed from probationary status by DFPS. The intent of this requirement is to ensure that the provider is aware of the importance of correcting any deficiencies as well as to ensure that children are initially placed with providers that meet minimum health and safety requirements.
Section 809.94(c) allows parent choice when a parent wants a child to be enrolled or continued to be enrolled with a provider on DFPS corrective action. A parent receiving the notification of the provider's status with DFPS, but who chooses to continue enrollment with the provider must sign an acknowledgment indicating that he or she is aware of the provider's status with DFPS, but has chosen to continue with the enrollment. The parent must return the acknowledgment to the Board's child care contractor within 10 days of receiving the notification.
The Commission believes that a parent should be informed and acknowledge in a signed document that enrollment with the provider is the parent's choice. Although this will not necessarily prevent future litigation by the parent, requiring a parent to affirmatively acknowledge his or her decision is consistent with the principle of parental choice and establishes informed consent should something happen to the child while in the provider's care.
Section 809.94(d) prohibits providers on any corrective action from receiving enhanced reimbursement rates under §809.20. Specifically, providers who are Texas Rising Star (TRS) certified, participating in Texas Early Education Model (TEEM), or Texas School Ready!™ certified are prohibited from receiving enhanced reimbursement rates while on DFPS evaluation or probationary status. The providers will remain eligible to receive the Board's regular reimbursement rate, but will not be eligible for the enhanced rate. It is the Commission's intent that providers receiving enhanced reimbursement rates are being compensated for attaining higher quality of early care and education. Therefore, if DFPS has placed a provider on corrective or adverse action, then the provider is not offering a higher quality of early care and education.
Section 809.94(e) sets forth Board requirements regarding providers against whom DFPS is taking adverse action.
Section 809.94(e)(1) requires that Boards notify parents with children enrolled in Commission-funded child care no later than two business days after receiving notification from the Agency that DFPS is taking adverse action against the provider. The Commission includes a maximum two-day notification requirement to emphasize the importance of timely notification when a provider is on adverse action. Because adverse action is taken when DFPS determines that conditions at the provider pose a risk to the health and safety of the children, it is important to notify parents of children receiving Commission-funded child care as quickly as possible. In order to speed the notification process, the Commission also notes that the notification does not have to be in writing, but may be a notification by phone or other means. The Board may provide written notification as long as the notification is provided to the parent no later than two days from receiving notification from the Agency.
Section 809.94(e)(2) requires Boards to ensure that children enrolled in Commission-funded child care with the provider are removed from care at that provider no later than five business days after receiving notification from the Agency that DFPS is taking adverse action against the provider. Although it is important to stress the timely nature of ensuring parental notification, it is also important to provide the parent with sufficient time and opportunity to locate and choose another eligible provider that meets the child care needs of the parent.
Section 809.94(e)(3) requires Boards to ensure that no new referrals for Commission-funded child care are made to the provider while DFPS is taking adverse action.
Finally, §809.94(f) sets forth the provisions applicable to a provider for which DFPS has determined that the provider poses an immediate risk to the health or safety of children and cannot operate pending appeal of the adverse action, but for which there is a valid court order that overturns DFPS' determination and allows the provider to operate pending administrative review or appeal. Commission rules state that in this situation, Boards must take action consistent with the provisions of §809.94(e). The Board must treat this situation in the same manner as a provider against whom DFPS intends to take adverse action. Specifically, the Board must notify parents no later than two business days after receiving notification from the Agency that the provider is on adverse action with DFPS and ensure that enrolled children in Commission-funded child care are removed from that provider's care no later than five business days after receiving notification from the Agency that the provider is on adverse action with DFPS.
Comment: One commenter representing Board and Board child care contractor staff agreed with the rule changes and thanked the Commission for making the changes. The commenter stated that the changes were needed and were the right direction to go.
Response: The Commission appreciates the comment and thanks the Boards for providing input during the rulemaking process.
COMMENTS WERE RECEIVED FROM:
Joyce Sneed, on behalf of the Concho Valley Workforce Development Board and the Board's child care contractor.
The rule is adopted under Texas Labor Code §301.0015 and §302.002(d), which provide the Commission with the authority to adopt, amend, or repeal such rules as it deems necessary for the effective administration of Agency services and activities, and the Texas Human Resources Code §44.002, regarding Administrative Rules.
The adopted rule affects Texas Labor Code, Title 4, particularly Chapters 301 and 302, as well as Texas Government Code, Chapter 2308.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on June 2, 2009.
TRD-200902189
Reagan Miller
Deputy Division Director, Workforce Policy and Service Delivery Branch
Texas Workforce Commission
Effective date: June 22, 2009
Proposal publication date: March 13, 2009
For further information, please call: (512) 475-0829